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LegalEagle1
LegalEagle1, Attorney
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Experience:  Practicing attorney licensed for over 23 years.
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I need an expert with WI OUI laws.

Customer Question

I need an expert with WI OUI laws.
Submitted: 1 year ago.
Category: Legal
Expert:  LegalEagle1 replied 1 year ago.
Hello and welcome to JustAnswer.

I am criminal defense attorney who practice has a large focus on DUI defense. I have attended many national seminars on DUI defense and I am frequently consulted with by lawyers around the country on DUI issues.

If you want to tell me what your question is I will let you know if I can answer it.
Customer: replied 1 year ago.

I would like to know what "acting as a community care taker", as stated by the police officer constitues and if that means she was able to enter my open garage while I was sitting in my parked car.

Customer: replied 1 year ago.

HI,


Lost my connection. Did you get my question?

Expert:  LegalEagle1 replied 1 year ago.
I apologize for the delay in getting back with you. I had stepped away from my computer. Also I had a little research I wanted to do to answer your question.

Here are several articles that outline the "community caretaking" function. They discuss the history, principles behind it and probably more importantly the government's attempt to expand that role.

This is law review article you access for free.

Link

What you officer is most likely trying to claim is that he observed your vehicle from the street and saw someone behind the steering wheel (and any thing else he cares to add motor running brake lights on.) And based on this he thought there may be a person in need of medical attention so he as "community caretaker" investigated further. He entered the garage and discovered a driver who was impaired by alcohol.

Whether the officer is able to enter your garage and check a vehicle would be a case in which the court would have to decide how far to expand the principle. As you can see if you review the article courts are all over the place on how they decide cases involving this principle.

Wisconsin basically uses a 3-part test which asks (1) whether a search or seizure occurred, (2) whether the police conduct was "bona fide community caretaker activity," and (3) whether the public need for the intrusion outweighed the interests of the person subject to the search or seizure. State v. Anderson, 417 N.W.2d 411, 414 (Wis. Ct. App. 1987))); see also State v. Ziedonis, 707 N.W.2d 565, 570 (Wis. Ct. App. 2005)

You can read State v. Ziedonis, 707 N.W.2d 565, 570 (Wis. Ct. App. 2005) here. http://scholar.google.com/scholar_case?case=2017667634444759760&hl=en&as_sdt=2&as_vis=1&oi=scholarr

The court in Ziedonis said that "In evaluating the third factor, the following four considerations should be taken into account: "(1) the degree of public interest and exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished."

There is no brightline rule for resolving the issue in your case. In fact you could present the same facts to different judges and possible get two conflicting decisions from them.

One would hope that a person would be free of government intrusion into their garage when they are sitting in their vehicle parked in the garage. The next step down the slippery slope is are we going to let police enter homes when they see someone sitting in a chair through a window. If the facts are as simple as you presented them I think you definitely have an issue to present to the court.

Please let me know if you have any additional questions.

Good Luck.

I hope that I have answered your question. Please let me know if you have more questions or need more information.

_________________________________________________________________
Please rate my answers with a positive rating (three or more stars) as this is the only way I receive credit and compensation for my work. If you have additional questions or need more information, please ask.

My goal is to provide with best assistance that I can. Please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

Also keep in mind that the law may not always be settled or may not support the position you want. My role is not to tell you what you want to hear. but to provide you accurate information as to what the law provides. Please do not rate me poorly just because the information I have provided does not support the outcome you desire.

You can always request me through my profile at http://www.justanswer.com/law/expert-legaleagle1 also begin your question with “For LegalEagle1”
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Customer: replied 1 year ago.


Thank you so much for your time and research. Do you think if we can get that issue highlighted (that the intrusion should never have happened in the first place), that all of the rest of the arrest and citations and blood draw and fingerprinting, etc. would be thrown out?

Expert:  LegalEagle1 replied 1 year ago.
That would be the argument. This is known as the "Fruit of the Poisonous Tree" doctrine. The logic of the terminology is that if the source of the evidence (the "tree") is tainted, then anything gained from it (the "fruit") is tainted as well. The term fruit of the poisonous tree was first used in Nardone v. United States 308 U.S. 338 (1939).

https://supreme.justia.com/cases/federal/us/308/338/case.html

I hope that I have answered your question. Please let me know if you have more questions or need more information.

_________________________________________________________________
Please rate my answers with a positive rating (three or more stars) as this is the only way I receive credit and compensation for my work. If you have additional questions or need more information, please ask.

You can always request me through my profile at http://www.justanswer.com/law/expert-legaleagle1 also begin your question with “For LegalEagle1”
_________________________________________________________________
Use of this service does not create any attorney client relationship. Information provided is intended to explain general legal principles and assist you in finding an attorney in your area.

Please click "Great" or better to rate service.
Customer: replied 1 year ago.

What do you think the chances are of using this method of defense? I supposedly was almost 3 times over the limit, but parked in my garage without an incident. Do you think I need an "expert" attorney to understand all the references you have given me or are most OUI attorney's going to be familiar or at least be able to reference those in a knowledgeable manner?


 


Sorry to be so inquisitive, but I have been working on this for almost a year, and this is the most information I have ever gotten in such a short period of time. You are the only one that has provided me with useful and important information. I thank you for that. This is so important to me I cannot tell you. I have been so stressed out and I literally have lost my family over this.


 


Cheryl

Expert:  LegalEagle1 replied 1 year ago.
Did the officer observe the car running?

Did you have the keys in your possession?
Customer: replied 1 year ago.

When she entered the garage, the car was not running. The keys were in my hand. There is a very limited space between the garage wall and my exit door of the car (less than an arm's length), which makes it quite difficult to get out of the vehicle in any given situation, even on a good day. Plus I carry a very heavy work bag and purse, which is even more cumbersome trying to exit a vehicle when police are yelling at you to get out of the car.


What are you doing August 1st? Want to come to Milwaukee? I'll buy you dinner!! Name your price.


 


Cheryl

Expert:  LegalEagle1 replied 1 year ago.

You added something to your last statement that makes me think that I was not aware of all the facts. Did the police follow the car home? Did they observe it being driven on the road?

 

 

I'll be sailing on the Chesapeake Bay in early August.

Customer: replied 1 year ago.


"The driver, Cheryl was located a short time later while parked in the open garage at her residence".


 


"Within a short time period, I (police) arrived in the area in an attempt to locate that vehicle. I drove thru the alley behind P Ave and observed the garage door to be open. I observed the Honda and the drivers side door was open and a leg sticking out of the door. Acting as a "community care taker" I entered the open garage to check the welfare of the driver".


 


So, I guess my answer to you would be no, they did not follow the car home or observe it being driven on the road.


 


Cheryl


 


 


 

Expert:  LegalEagle1 replied 1 year ago.
That is probably correct. How do they even know that Cheryl was the driver if the vehicle was observed earlier. Someone else could have parked the car and she could have gotten in to retrieve a pack of gum from the console.

I hope that I have answered your question. Please let me know if you have more questions or need more information.

_________________________________________________________________
Please rate my answers with a positive rating (three or more stars) as this is the only way I receive credit and compensation for my work. If you have additional questions or need more information, please ask.

My goal is to provide with best assistance that I can. Please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

Also keep in mind that the law may not always be settled or may not support the position you want. My role is not to tell you what you want to hear. but to provide you accurate information as to what the law provides. Please do not rate me poorly just because the information I have provided does not support the outcome you desire.

You can always request me through my profile at http://www.justanswer.com/law/expert-legaleagle1 also begin your question with “For LegalEagle1”
_________________________________________________________________
Use of this service does not create any attorney client relationship. Information provided is intended to explain general legal principles and assist you in finding an attorney in your area.

Please click "Great" or better to rate service.
LegalEagle1, Attorney
Category: Legal
Satisfied Customers: 748
Experience: Practicing attorney licensed for over 23 years.
LegalEagle1 and 3 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


Thanks so much. I am sorry for taking up so much of your time. I hope you enjoy your time on Chesapeake.


 


If you are interested or challenged or intrigued or whatever, feel free to contact me at XXXXX@XXXXXX.XXX, or if you come up with any additional ideas.


 


If you believe, God Bless...if not, Happy Trails!


 


Regards,


Cheryl

Expert:  LegalEagle1 replied 1 year ago.
Good luck. We are not permitted to contact people outside the forums.

No rating is showing up for my answers to your questions as of yet. Please rate them so I receive credit for the time I spent.

_________________________________________________________________
Please rate my answers with a positive rating (three or more stars) as this is the only way I receive credit and compensation for my work.

You can always request me through my profile at http://www.justanswer.com/law/expert-legaleagle1 also begin your question with “For LegalEagle1”
Expert:  LegalEagle1 replied 1 year ago.
Thank you for the high rating and the bonus. Let me know how things go. I'm sure the officers will try to change the "facts."
Customer: replied 1 year ago.

I will indeed. I have faith and you just made it much better. Thanks again, this was well worth the time and effort on my part.


They are cops on steroids!


 


 


If your plans in August change.....!! Could sure use someone as knowledgable and considerate as you. These clowns around here just don't even want to try.


 


Good night, I am spent.


Cheryl

Expert:  LegalEagle1 replied 1 year ago.
Try contacting an attorney from this list.

http://www.ncdd.com/duiattorneydirectory-Wisconsin.php
Customer: replied 1 year ago.

Ok, clicked on the link...thank you, by the way, and got a big ugly Danger sign to browse the link. "Threats" it said because of ncdd.


 


Are there alot of names on there? Perhaps if you could just give me the ones in Southeast Milwaukee or even Milwaukee county? If not, I can play with it tomorrow.


Cheryl


 


 


 

Expert:  LegalEagle1 replied 1 year ago.
That is odd. I've never had that happen. We cannot refer people to specific lawyers. Just information sites/
Customer: replied 1 year ago.


OK, I will try the link on the computer at work tomorrow. Now I have to print out all of this correspondence for review over the weekend. Fun, fun! I hope you like your job because I am sure I would not!


Nice talking to you. I truly apprecaite your input and advice.


 


Sleep well


Cheryl

Customer: replied 1 year ago.


Hi, Are you there?

Expert:  LegalEagle1 replied 1 year ago.
I received your message on my phone. I'm away from my computer right now. I should be available tomorrow at 11 AM your time to answer any questions you may have.

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